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EXHIBIT 11
JEVIC TRANSPORTATION, INC.
600 Creek Road
P.O. Box 5157
Delanco, NJ 08075
December 22, 1998
Yellow Corporation
10990 Roe Avenue
Overland Park, KS 66211-1213
Attn: William F. Martin, Jr.
Senior Vice President
Dear Sirs:
In order to enable you to evaluate a possible transaction
between Jevic Transportation, Inc. (together with its subsidiary and affiliated
companies, the "Company") and you (the "Possible Transaction"), there will be
provided to you certain proprietary, nonpublic, confidential information
concerning the Company, its subsidiaries and their properties, operations and
finances.
1. All information about the Company furnished by the Company and by
its affiliates, directors, officers, employees, agents and financing sources
(all such persons are collectively referred to herein as "representatives"),
whether furnished to you or to your representatives before or after the date
hereof, is referred to in this letter agreement as "Proprietary Information".
For purposes of this agreement, Proprietary Information (a) shall include all
documents which are prepared by you and your representatives, including all
correspondence, memoranda, notes, summaries, analyses, studies, models, extracts
of and documents and records reflecting, based on or derived from Proprietary
Information as well as all copies and other reproductions thereof, whether in
writing or stored or maintained in or by electronic, magnetic or other means,
media or devices (all such documents and writings which are prepared by you or
your representatives are sometimes referred to herein as "Evaluation
Documents"), and (b) shall not include information which (i) is or becomes
generally available to the public other than as a result of a disclosure by you
or your representatives in violation of this agreement, (ii) was available to
you on a nonconfidential basis prior to its disclosure by the Company or its
representatives, or (iii) becomes available to you on a nonconfidential basis
from a person other than the Company or its representatives who is not known to
you to be otherwise bound by a confidentiality agreement with the Company or its
representatives or prohibited from transmitting the information to you. As used
in this letter, the term "person" shall be broadly interpreted to include,
without limitation, any corporation, company, partnership and individual.
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2. Unless otherwise agreed to in writing by the Company or as permitted
by paragraph 3 hereof, you agree that (a) you and your representatives will keep
all Proprietary Information confidential and not disclose or reveal any
Proprietary Information to any person other than those of your representatives
who are actively and directly participating in the evaluation of the Possible
Transaction or who otherwise need to know the Proprietary Information for the
purpose of evaluating the Possible Transaction, and cause your representatives
to observe the terms of this letter agreement, (b) you and your representatives
will not use Proprietary Information for any purpose other than in connection
with the evaluation of the Possible Transaction and (c) you and your
representatives will not disclose to any person (other than to your
representatives actively and directly participating in or evaluating the
Possible Transaction) any information about the Possible Transaction, or the
terms, conditions or other facts relating thereto, including the fact that
discussions are taking place with respect thereto or the status thereof, or the
fact that the Proprietary Information has been made available to you. You will
be responsible for any breach of the terms hereunder by you or your
representatives.
3. In the event that you or any of your representatives is requested
pursuant to , or required by, applicable law or regulation or by legal process
to disclose any Proprietary Information concerning the Company or the Possible
Transaction (including any facts or information referred to in paragraph 2(c)
above), you agree that you will provide the Company with prompt notice of such
request(s) or the receipt(s) of legal process so as to enable the Company to
seek an appropriate protective order, to consult with you with respect to the
Company or you taking steps to resist or narrow the scope of such request or
process, and/or to waive compliance in whole or in part with your agreement to
maintain the confidentiality of the Proprietary Information. If and to the
extent that after the foregoing notice, in the absence of a protective order or
receipt of a waiver under this letter agreement, you or your representatives
are, in the opinion of your counsel, compelled to disclose Proprietary
Information or other information concerning the Company or the Possible
Transaction or risk being liable for contempt or suffer censure or penalty or
violate applicable laws or regulations, you and your representatives may
disclose such Proprietary Information or other information without liability to
the Company under this letter agreement.
4. If you determine that you do not wish to proceed with the Possible
Transaction, you will promptly advise us of that decision. In that case, or in
any case, you agree that you will, upon the Company's request, promptly deliver
to the Company all of the Proprietary Information in your possession or control
or in the possession or control of any of your representatives. You may,
however, destroy such of the Proprietary Information as constitutes Evaluation
Documents in your and your representatives' possession or control, whether
prepared by you or your representatives, in which case you will do so promptly
and, if requested by the Company, you will provide a written statement by an
officer of your organization familiar with your consideration of the Possible
Transaction certifying that all such Evaluation Documents, including all copies
thereof, have been destroyed.
5. In consideration of your receipt of the Proprietary Information, you
hereby agree that for a period of three (3) years from the date hereof neither
you, nor your affiliates, as defined in rule 12b-2 under the Securities Exchange
Act of 1934, as amended (the "Exchange
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Act"), will (and you and they will not assist or encourage others to), directly
or indirectly, unless specifically requested in writing to do so in advance or
consented prior thereto in writing by the Company:
(a) acquire or agree, offer, seek or propose to acquire, or cause
to be acquired, ownership (including, but not limited to,
beneficial ownership as defined in Rule 13d-3 under the
Exchange Act) of any of the assets or business of the Company
or of any of its subsidiaries or any voting securities issued
by the Company or any of its subsidiaries, or any rights or
options to acquire such ownership (including from a third
party); or
(b) make, or in any way participate in, any "solicitation" of
"proxies" (as such terms are defined under Regulation 14A of
the Exchange Act) to vote or seek to advise or influence in
any manner whatsoever any person or entity with respect to the
voting of any securities of the Company or any of its
subsidiaries; or
(c) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) with respect
to any voting securities of the Company or any of its
subsidiaries; or
(d) arrange, or in any way participate in, any financing for the
purchase of any voting securities or securities convertible or
exchangeable into or exercisable for any voting securities or
assets of the Company of any of its subsidiaries; or
(e) otherwise act, whether alone or in concert with others, to
seek to propose to the Company, any subsidiary of the Company
or any of their stockholders any merger, business combination,
restructuring, recapitalization or similar transaction to or
with the Company or any of its subsidiaries or otherwise seek
or propose to influence or control the Company's management or
policies; or
(f) solicit for employment, or seek to negotiate or influence the
terms and conditions of employment of, any employees of the
Company or any of its subsidiaries with whom you have direct
contact in connection with your evaluation of or our
discussions concerning the Possible Transaction; or
(g) enter into any discussions, negotiations, arrangements or
understandings with or advise, assist or encourage any third
party with respect to any of the foregoing.
In addition, you also agree during such three (3)-year period not to
(a) request the Company directly or indirectly to amend or waive any provision
of this paragraph 5 (including this sentence) or (b) take any action designed to
or which can reasonably be expected to require
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the Company to make a public announcement regarding any of the matters referred
to in this paragraph 5.
6. Although the Proprietary Information contains information which the
Company believes to be relevant for the purpose of your evaluation of the
Possible Transaction, neither the Company nor any of its representatives makes
hereunder any representation or warranty, express or implied, as to the accuracy
or completeness of the Proprietary Information delivered or made available to
you. Neither the Company nor its representatives shall have any liability to you
or your representatives relating to or arising from the use of the Proprietary
Information. Only those representations and warranties that are made in a
definitive agreement effecting the Possible Transaction when, as and if one is
executed, and subject to such limitations and restrictions as may be specified
in such agreement, shall have any legal effect.
7. Without prejudice to the rights and remedies otherwise available to
the parties, you agree that the Company shall be entitled to equitable relief by
way of injunction if you or any of your representatives breach or threaten to
breach any of the provisions of this letter agreement. It is understood that any
failure or delay by a party in exercising any right, power or privilege
hereunder shall not operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof.
8. This letter agreement constitutes the entire and exclusive agreement
between the parties respecting the subject matter hereof, superseding all prior
discussions, agreements or arrangements, whether oral or written, with respect
to the subject matter hereof. It may not be amended unless in writing and signed
by both parties. You acknowledge that the Company and its representatives have
no obligations to you of any kind respecting the Possible Transaction, that
there is no assurance that the Possible Transaction will be considered,
negotiated, agreed to or completed, and that an alternative transaction with a
person other than you may be considered, negotiated, agreed to or completed by
the Company without notice to you.
9. The Company agrees that it will not disclose to any person (other
than to its representatives actively and directly participating in or evaluating
the Possible Transaction) any information about the Possible Transaction, or the
terms, conditions or other facts relating thereto, including the fact that
discussions are taking place with respect thereto or the status thereof, or the
fact that the Proprietary Information has been made available to you, unless
otherwise agreed in writing by you or required by applicable law or regulation
or by legal process.
10. This letter agreement may be executed and delivered by facsimile
signature in one or more counterparts, each of which shall constitute an
original instrument and all of which, together, shall constitute the same letter
agreement.
11. This letter agreement, its interpretation and enforcement, shall be
governed by the laws of the State of New Jersey applicable to agreements made
and to be performed wholly therein.
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Please confirm your agreement with the foregoing by signing and
returning to the undersigned the duplicate copy of this letter enclosed
herewith.
Yours truly,
JEVIC TRANSPORTATION, INC.
By: /s/ Harry J. Muhlschlegel
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Harry J. Muhlschlegel, Chairman
and Chief Executive Officer
Accepted and Agreed
YELLOW CORPORATION
By: /s/ William F. Martin, Jr.
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William F. Martin, Jr.,
Senior Vice President
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